How would feel knowing that police are now capable of using the same technology used in airports to scan human bodies for weapons, ON THE STREET? The New York City Police Department has always had a big challenge on its hands dealing with guns and is now turning its attention to a system that can achieve this kind of walking gun scanning, right from a police car. You heard that right: police cars can scan people on the street for guns on their body. Their purported intent of course is to scan crowds for danger, a laudable goal that many would support in the abstract. But this particular implementation raises significant questions about the balance between security and privacy and how far we are willing to go to let one yield to the other. Not to mention the health concerns that prompt people to opt out of this type of thing in airports (this author included).

NYPD is saying that this kind of system “would only be used in ‘suspicious’ situations”, putting aside pesky questions about who decides what is “suspicious” and the natural tendency for anyone with a hammer to see the world as a bunch of nails. Let’s face it, we are living in a post-privacy world and that’s not news. What is news is that we appear to be sitting back and just letting it all happen without stopping to think of how far it will go, unregulated. Public DNA scanners seem inevitable, systems that track patterns of movement and purchases are already in place, and in the hands of a tyrannical government, there’s nothing they can’t know or see. Are you Ok with this?

Interesting questions arise in the criminal defense context. Is this a warrantless search? Are “suspicious circumstances” equivalent to the “probable cause” that our Constitutional Framers articulated to throttle the government’s intrusions, having no idea of how far those capabilities would advance in the future? What does it mean to be a “Textualist” or “Originalist” interpreter of the Constitution when there is no possibility that the Framers could envision this type of governmental intrusion? These are questions that will be answered as arrests take place and searches are litigated. Until then, make sure to wear underwear when you’re out.

We’ve reported on this before, but its use is intensifying. What the government can’t do via a national police force, it can do by funding local police agencies across the country. The Department of Homeland Security is providing funding to local police agencies for all kinds of technology aids in tracking “suspicious persons”. Seattle now joins the growing list of police agencies across the country using facial recognition software to scan local surveillance cameras looking for … who knows what. Ostensibly they are using the scans to look for suspects in criminal activity, but this type of dragnet is pretty broad. The scans are made against national databases maintained by the government and based on photos taken from driver’s license and passport photos across the nation. How these are being used to track crime isn’t exactly clear.

When police complain that they are under-funded and under-staffed, it’s hard to reconcile that with arrests I’ve seen where 9 police officers come out of a closet in a hotel room to make one prostitution bust. I’ve seen this kind of emphasis on “Vice” activity regularly, but I never get an answer as to why it’s a priority. But isn’t it obvious? The laughter and the smirks on officer’s faces when they confront an arrested prostitution patron tell the whole story, it’s just another form of amusement and titillation that beats the heck out of walking the beat or working a crime scene. And now the government is using your tax dollars ($1.6 million in Seattle’s case) to give officers more things to look at instead of criminals on the street.

The privacy concerns are real and they are frightening in their own right. But the outright waste of money and resources that are being gobbled up just because they are there is outrageous. I’ve yet to hear a cogent argument explaining the value of running hours and hours of random surveillance scans through public databases on the off chance that something, somehow criminal *might* be happening.

It’s axiomatic that what constituted an “unreasonable search” in 1789 is difficult to translate to 2013. And the US Supreme Court’s “reasonable expectation of privacy” rubric doesn’t help much because “reasonable expectations” naturally evolve with the technology landscape. But the implications of this anachronistic approach are staggering and little is being done to address the problem. What is at stake is one of the most cherished protections enshrined in the Bill of Rights, a document that literally was required in order to adopt our Constitution. From the beginning, Americans have expected to be free from “unreasonable searches” by the government as a fundamental part of their package of individual rights. And we are losing that protection as technology advances faster than our legal system can react.

The legal system simply isn’t capable of keeping up with the pace of technological erosion of privacy. The only way these issues can be resolved jurisprudentially is via the following process:

1) A new technology is invented and police quickly adopt it for use in a criminal investigation;

2) A suspect is convicted at trial and preserves their objection to use of the technology;

3) The long series of appellate courts refuse to grant the defendant relief;

4) The matter makes it way to the United States Supreme Court by petition for a writ of Certiorari (“Cert”).

5) Four members of the Court agree that it’s an issue worth hearing and they grant Cert.

6) The Court hears arguments and issues a ruling.

This process can take decades. Meanwhile, of course, police continue to use the technology to the point where the very definition of “reasonable expectation of privacy” changes to reflect that people no longer expect privacy where they once did. The result: an ongoing, uni-directional erosion of privacy with no end in sight.

The following article published by Eleanor Birrell at Harvard suggests some solutions with teeth. Don’t hold your breath.

DNA is easily the most valuable scientific tool available to help determine the truth in the courtroom. The accuracy of DNA profiling to determine personal identification and individualization is unmatched and can help both the prosecution and the defense when used properly. The problem is that it is NOT always used properly and when this happens the results carry so much weight in the minds of jurors, it can lead to disastrous results. Both sides in any litigation need to be aware of the potential for “slanting” of results. Government DNA analysts are by definition intelligent people who understand who pays their paychecks, and it’s no secret what outcome is desired when they are asked by police to perform an analysis.

Real scientists encourage the use of “blind” testing, where the desired results are not revealed, in an attempt to minimize the tendency of the tester to favor one outcome over another. This is standard scientific method and there is no good reason to avoid the practice if one really wants the truth. But police are not in the business of trying to discover the truth. They are in the business of trying to secure convictions from suspects and it has become routine procedure in criminal cases for the government’s DNA analysts to be told in advance what the case is about and what police are trying to prove. This kind of advance telegraphing of the desired result is not likely to be forgotten by the tester and any judgment calls that could be made during testing are inevitably going to result in slanting the evidence against the suspect.

Defense lawyers need to review government DNA reports carefully and look for evidence of this actual bias. In extreme cases it may even lead to suppression of the evidence or worse, prosecution or disbarment of lawyers who deliberately manipulate the results in their effort to prevail in court. Any defense lawyer who assumes that government “scientists” are as objective as independent research scientists is fooling themselves. Don’t assume, expect bias and challenge it with your own expert’s review of the process.

Want to get lost in the crowd? Good luck. The federal government is developing a surveillance system that uses computer software and video cameras to scan crowds and automatically detect people by their faces. The purported use, as always, is benign and is centered on the ability to identify terrorists on the watch list. Presumably, if the Boston Marathon bombers had been under suspicion and this technology had been used at the site of the marathon, the government might have been able to monitor their actions. That’s the premise. The reality, unfortunately, is different. Just as Aaron Alexis, a person with known mental illness and prior arrests for violence, was allowed to purchase automatic weapons and obtain a pass onto the Naval Yard grounds in D.C. prior to his mass murder rampage, and just as one of the Boston Bombers had been called to our attention by Russian security agents, even when we have this kind of advance information we don’t use it. How can we? Can you imagine how many people in this country could be “identified” as potential future nutcases that could go off the deep end? Every one of these guys is described after the fact by friends as “the last person you would expect to do this kind of thing”. We are caught between the ideals of personal and individual freedom, and protection from all threats. You can’t have both and the question will always be where to draw the balance.

The answer does not lie in being able to monitor all Americans, “just in case”. Even if it were possible to identify potential threats in this manner, is the benefit worth the cost? More Americans die falling from ladders every year than are killed by terrorists. Our country was founded (meaning, we killed our oppressors and threw them off forcefully) with the united purpose of establishing a nation based on the core principles of individual freedom, and that essential character has never changed. Why, then, would we give this up in order to gain modest-to-non-existent levels of additional security from sporadic threats?

This technology was originally developed in order to support the military in their detection of potential suicide bombers and other terrorists overseas at “outdoor polling places in Afghanistan and Iraq,” . But in 2010, the effort was transferred to the Department of Homeland Security to be developed for use instead by the police in the United States. The Constitution does not authorize a national police force or a domestic military. Yet this is exactly what the Department of Homeland Security is creating (if not deliberately, certainly by default) as it arms local police agencies with technologies that are ultimately going to be used primarily against law-abiding citizens in the hopes that a big enough net will drag in the bad guys with everyone else.

Ever wonder why you are told NOT to smile for your Passport or Driver’s License picture (or your booking photo, for that matter, but that probably narrows down the number of you who can identify with the question)? There’s a reason. It’s called Facial Recognition Software and it’s a technology that analyses photos of faces and breaks them down into unique numeric codes that claim to individually identify a person. The software essentially scans a face, breaks it down into various regions (cheekbones, eyes, etc.) and assigns numeric values to each of these regions. The resulting numerical value is claimed to be unique for every face scanned and technologists claim they are able to identify people based simply on a photograph of the person.

This is not some futuristic scenario, this is happening today. It’s why you might get a notice from Facebook that you have appeared in someone’s posted photo. Facebook actually uses Facial Recognition Software to scan every face in every photo on its site and uses it to help identify people for just this reason. You should keep in mind that the State Department also uses this software and tracks every face on every passport and driver’s license, but probably for very different reasons. All of those faces are available to law enforcement across the nation for whatever purposes they come up with.

Police in New York, for example, have started taking images caught on surveillance cameras around town and on social media and are sending them through Facial Recognition Software in order to locate suspects. At least, that’s what they’re telling us at this point. What else they are doing with your picture is anyone’s guess.

The software does not work well with smiles or profiles. So next time you have your photo taken at the Department of Motor Vehicle Licensing, or send in a picture for a passport, and are told not to smile, you’ll know why.

I am not making this up. The latest development in TWS or “Through-the-Wall-Surveillance” (bet you didn’t know this was a known acronym) is called “Standoff Through-the-Wall Imaging Radar” and was developed by a company that has just been granted a waiver by the federal government to start selling this to law enforcement agencies for “emergency use” and “training”. The Department of Justice helped fund this system, so these are your tax dollars at work.

The system uses radar to detect motion through interior or exterior building walls. You heard me right. It can “see” through walls made of brick, sheetrock, wood, fiberglass, even reinforced concrete and other common structural materials (we are still private behind solid metal, they’re still working on that). The technology is touted as being able to track individuals inside a building during a hostage rescue crisis, for example. That would seem a great application of this technology, but you know how that goes: give a man a hammer and he will see nails everywhere he looks, so don’t be surprised to see litigation pop up as police start “training” by watching homes of “suspected drug dealers” or other “suspicious characters” hiding behind enclosed walls, of all things.

The devices authorized for use by law enforcement can be used either up close or from a distance so police could monitor human activity on the other side of a wall while sitting in the comfort of a police cruiser traveling up and down the street looking for “suspicious activity”. Seriously, the technology provides a great new tool for those times when it really is needed. But it’s honestly hard to imagine that something this sophisticated will only be hauled out in those relatively few ideal situations. The temptation is going to arise to apply this to many new scenarios previously considered to have a reasonable expectation of privacy. And that’s a problem. Because the notion of a “reasonable expectation of privacy” is in danger of “evolving” alongside of the growth of these emerging technologies. The effect of this will be an erosion of our Fourth Amendment protections to the point where there no longer is any such thing as a “reasonable expectation of privacy”.

They’re calling it Predictive Policing, but is it really just another form of statistical profiling? Police in New York and Los Angeles are using software called (predictably) “PredPol” as part of their daily briefing to help locate crime “hot spots” for the day. The software creates a map of the city being watched, marking it up with small red 500-by-500 feet squares where crimes are “likely” to happen. The software claims to use more than just a database of past crimes and adds what it calls “sociological information” to help forecast likely spots where cars may be stolen, houses burglarized or people mugged. The company does not elaborate on what kind of “sociological information” is worked into the algorithms, but the term “sociological” implies that assumptions about the behaviors of people are being woven into the mix at some point.

At first blush, this sounds like a reasonable way to gain insights from past data about where crimes are “likely” to happen. And to the extent that police presence deters crime, this could have beneficial effects. But it’s also true that arrests can only occur where police are present, which suggests that any area where police are concentrated is going to have more arrest activity. Over time, will this become a self-fulfilling prophecy as police make more and more arrests in the areas that have been targeted based on “sociological information”, which will in turn give more statistical weight to these areas as crime “hot spots”?

When applying for search warrants (which must be based on “probable cause”), police often cite as a basis that the area to be searched is in a “high crime area”. Don’t be surprised to see search warrants start reciting that the area to be searched was targeted by PredPol as an area where crimes are “likely” to occur. When that happens, we will be one step closer to diluting the notion of a “detached magistrate” and relying on computers to make the independent judgments that need to be made in these highly subjective calls.

And just wait till real estate agents start using this data to steer people away from crime “hot spots”. Think about that next time you consider reporting a crime to police.

Omnipresence. Complete Surveillance. How would you define “Big Brother”? Would your definition include the collection of information regarding where you live, work, your political and religious beliefs, your social and sexual habits, your visits to family, friends, even doctors? The ACLU and the Electronic Frontier Foundation have filed suit against the LAPD and the Los Angeles Sheriff’s Department for doing just that. If you’re already following this blog, that won’t come as a surprise.

After hearing about the increased use of automated license plate readers (ALPRs) by law enforcement to scan and record the license plates of cars all around the country, the ACLU and the EFF asked the LAPD and the LASD for all the data and information it had collected and their policies on retaining and disseminating the information. Not surprisingly, law enforcement declined the request citing the information constitutes “investigative material” and the ACLU and EFF filed suit.

According to the LA Weekly, LAPD and LASD together already have collected more than 160 million “data points” (license plates plus time, date, and exact location) in the greater LA area—that’s more than 20 hits for each of the more than 7 million vehicles registered in L.A. County.

Law enforcement argues that ALPRs are an easy way to find stolen cars — the system checks a scanned plate against a database of stolen or wanted cars and can instantly identify a hit, allowing officers to set up a sting to recover the car and catch the thief. But even when there’s no match in the database and no reason to think a car is stolen or involved in a crime, police keep the data. Law enforcement officers also have access to private databases containing hundreds of millions of plates and their coordinates collected by “repo” men.

The ACLU says: Amassing data on the movements of law-abiding residents is a violation of our freedom and provides speculative benefits.

I say this is just another step down the road in a post-privacy world.

In February our fair City of Seattle – most recently in the news for our passage of bills legalizing gay marriage and marijuana use – took a stand against a disturbing trend: law enforcement putting aerial drones over our heads. The Seattle Police Department spent $80,000 in 2010 to acquire two small drones equipped with cameras which were supposed to be used only in certain criminal investigations and to search for missing persons, although I don’t think it’s hard to imagine the potential for abuse in those scenarios. Thankfully, Mayor Mike McGinn and the Seattle PD jointly decided to ground the project. The SPD claims that it decided to end the project to “focus its resources on public safety and the community-building work that is the department’s priority,” but I think it’s more likely that the project was grounded due to the heated criticism by residents and the ACLU, and a public outcry over privacy issues.

As a citizen (and as an attorney who deals with the police on a regular basis) I am proud that the public was able to see this for what it is. While it’s true that the drones would not have carried weapons and can only stay in the air for 15 minutes before their batteries run out – a point made by the SPD that was supposed to make them seem less of a threat but almost makes them seem useless – the real issue is not about our safety, but about our right to privacy and our trust that our government will respect that right. The use of these drones, the way that I believe the SPD would ultimately use them, would almost certainly amount to warrantless searches and the slope would only continue to get more slippery. But, crisis averted, right? Or so it seemed …

A month after the drone program was grounded, the Seattle City Council approved new legislation governing how and when the city can use and operate this type of surveillance equipment. Hmm. Trying to sell us on the drones again? The new legislation would provide that any city department that wants to use surveillance equipment, including drones and cameras, would simply have to get prior approval. Departments would have to spell out how they plan to use the devices, and the City Council would hold a public hearing on the proposal before giving the Ok. So far so good. And then, oops, a last minute amendment! The amended bill would allow police to use drones without approval under three sets of conditions: 1) when they have a warrant to do so; 2) no warrant, but under certain “exigent” circumstances; and 3) in the course of a criminal investigation when the courts would not require a warrant for specified kinds of surveillance in public spaces. Not so surprisingly, our Seattle Police Chief, John Diaz, asked the council for these exemptions. He noted that the requirement to secure a warrant could create an “impediment” to investigations because the courts are not inclined to issue warrants when they are not needed. In other words, “we want the ability to do warrantless searches because the courts might not issue a warrant”.

This is NUTS. There is only one reason a court won’t issue a warrant when asked: the warrant is not authorized by law and would result in unconstitutional behavior by police. Is anyone surprised that police want to make this decision on their own without having to consider pesky Constitutional issues? Does anyone trust them to make these legal decisions on their own? Citizens have not in the past, and should not now.

Defensology is aimed at general audiences interested in issues affecting the use of technology in criminal investigations and prosecutions. The perspective of the author is that of a criminal defense lawyer, without apology.

Defensology is maintained by Robert Perez, a criminal defense lawyer based in the Seattle area of Washington State. Robert is proud to defend liberty and freedom and restrict the ever growing reach of an intrusive government. Fight the Power.